Don't Blame "Corporate Personhood"

American politics is in trouble. A tsunami of unaccountable, untraceable political money is overwhelming the Republican race for the presidential nomination and threatens to do the same to the fall election. For many people, especially progressives, the culprit is easy to name: the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, which swept away any limits on election-advocacy ads by corporations, unions, and “independent” political-action committees (PACs) and issue groups. Many progressives believe that Citizens United “made corporations people” and that a constitutional amendment restricting “corporate personhood” will cure this political ill.

Citizens United is a bad decision. This obvious fact may even be dawning on the Court’s conservative majority, which is taking a surprisingly leisurely look at American Tradition Partnership, Inc. v. Bullock, in which the Montana Supreme Court directly challenged Citizens United, in essence telling the justices that they didn’t understand the first thing about politics. Justices Ruth Bader Ginsburg and Stephen Breyer, dissenters in Citizens United, have publicly stated that American Tradition may offer an opening to limit or even overturn the malign precedent.

But the problem didn’t start with Citizens United and can’t be fixed by a corporate-personhood amendment. The threat to American self-government runs far deeper. It started nearly 40 years ago, when the Court first became involved in campaign-finance cases. Four decades of decisions have allowed the rich and powerful to transform free speech—our most important tool of bottom-up self-government—into a means of top-down social control.

To understand what’s wrong with free-speech doctrine in the 21st century, consider a question put from the bench by Chief Justice John Roberts during oral argument in a case called Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.

In 1998, the voters of Arizona created a voluntary public-financing system, in which a candidate who agreed not to solicit or spend private funds would receive state funding. Public financing is a great idea; it frees candidates from the need to truckle to wealthy donors. Under current constitutional doctrine, though, it can’t be made mandatory. Candidates who refuse to take part in the system can often raise much more (from their own funds or from contributions) than the amount allotted to their challengers by the state. To address this concern, the act provided that if a privately financed candidate spent more than a publicly financed candidate’s allotted funding, the publicly financed candidate would receive additional money to allow a competitive election. The law didn’t match the private campaign dollar for dollar, but it did give the publicly financed candidate a second infusion of cash.

Right-wing political groups challenged the additional-funding provision. They argued that it infringed the free-speech rights of privately financed candidates, because those candidates might hesitate to spend campaign funds if doing so would trigger additional funding for their opponents.

When the case came before the Court, Roberts asked the state of Arizona’s lawyer, “I checked the Citizens’ Clean Elections Commission website this morning, and it says that this act was passed to, quote, ‘level the playing field’ when it comes to running for office. Why isn’t that clear evidence that it’s unconstitutional?”

Appellate judges are not supposed to go Googling around on argument day in search of new evidence to spring on counsel during oral argument. They are supposed to decide cases only on the record before the Court. Early in 2012, when a government lawyer defending environmental regulations seemed to be straying from the printed record of evidence, Roberts dressed him down. “If they weren’t in the record, I don’t want to hear about them. You appreciate that rule, that we don’t consider things that aren’t in the record,” he scolded. That rule apparently doesn’t apply to the chief justice.

Roberts’s question showed that he had detected a major First Amendment heresy. Any hint of civic equality, any reference to a “level playing field,” was to him proof that Arizona’s election scheme was invalid. Indeed, the Court invalidated the Arizona law three months later. The Republican right, supported by the conservative majority on the Supreme Court, has decided that freedom of speech is incompatible with equal citizenship. That misunderstanding has done severe damage to our democracy and now threatens to destroy it.

That misunderstanding also explains Citizens United, in which the Court held that corporations must be allowed to fund independent advertising advocating the election or defeat of political candidates. The ban on independent expenditures (which applied only during a time period just before elections) was designed to avoid corruption or the appearance of corruption. Lawmakers reasoned that allowing corporations to jump into a campaign might give them unfair sway over successful office seekers; even if it did not, it would create the impression that wealthy people and organizations can buy influence with the candidates they support.

The Court, however, laughed off this claim. “Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” Justice Anthony Kennedy wrote for the majority. “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.” Exactly why this is true the Court did not bother to explain.

What Citizens United means is that corporations and wealthy donors, with their enormous financial resources, can flood the airwaves with ads from deceptively titled issue groups with names like “Americans for Prosperity” and “American Future Fund.” They did this in the 2010 midterms and have now transformed the Republican primaries of 2012, in which secretive “super PACs,” allied with the different rivals for the nomination, have poured millions into small-state contests to fund scabrous attack ads. In February 2012, the Obama campaign bowed to the inevitable and began urging wealthy donors to support its own super PAC, Priorities USA Action. As this suggests, the independence of these groups is a joke; they have become arms of the campaigns, governed by no limits on contributions or contributors. The money race is bound to assume a new and monstrous level as the 2012 campaign cycle moves forward.

Conservative activists are ready with cases designed to push the Citizens United principle further. In United States v. Danielczyk, District Judge James C. Cacheris dismissed criminal charges against executives accused of diverting corporate funds to the Hillary Clinton presidential campaign. Even the current federal ban of direct contributions from corporate treasuries—unchanged by Citizens United—violates the First Amendment, he said. “Taken seriously, Citizens United requires that corporations and individuals be afforded equal rights to political speech, unqualified,” he wrote. “Thus, following Citizens United, individuals and corporations must have equal rights to engage in both independent expenditures and direct contributions. They must have the same rights to both the ‘apple’ and the ‘orange.’”

Judge Cacheris’s opinion contradicted what the Supreme Court had said in Citizens United, but it’s likely that the Court will seriously consider his argument when the issue comes before it. Meanwhile, right-wing lawyers are conducting a guerrilla campaign in the lower courts against requirements that donors disclose their identities. This too, the right argues, violates “freedom of speech.” Justices Clarence Thomas and Samuel Alito have hinted that they agree with this position.

The right embraced Citizens United as the most important free-speech victory since the repeal of the Sedition Act. “Any proponent of free speech should applaud this decision,” said Senate Minority Leader Mitch McConnell. “Citizens United is and will be a First Amendment triumph of enduring significance.” Even Newt Gingrich, who often speaks of federal courts as an enemy to be defied or even dissolved, praised the Supreme Court for “its principled defense of our First Amendment rights to freedom of speech, for example in the recent case of Citizens United.”

Progressives and moderates have reacted differently. In his 2010 State of the Union address, President Obama scolded the justices seated in front of him, saying, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.”

Much progressive outrage focuses on the inclusion of corporations in the First Amendment. The idea has grown up that the case created corporate personhood. This is because the First Amendment’s guarantee of free speech applies to the states by way of the Fourteenth Amendment, which forbids the states to “deprive any person of life, liberty, or property, without due process of law.” Jeffrey D. Clements, general counsel and co-founder of Free Speech for People, recently published an anti–Citizens United book with the title Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It. Demonstrators outside the Supreme Court on the second anniversary of Citizens United performed a skit in which actors wore large boxes with corporate logos. While a chorus belted out Sesame Street’s song about “a person in your neighborhood,” the boxes tried to blend in with a crowd of ordinary workers and consumers. “I’ll believe corporations are people when Texas executes one” is the legend on one popular anti–Citizens United social-media post.

But the attack on “corporate personhood” reflects both a misconception of Citizens United and the problem with current First Amendment law. The problem is not that corporations are “persons” under the law. Corporations have always been “persons”—that is and always has been, in fact, the definition of a corporation, a “fictive person” able to own property and enter into legal agreements. Also, the problem is not the idea that corporate “persons” have free-speech rights. Of course they do. The idea that corporations have some of the free-speech rights that people have is essential to important Court decisions like New York Times Co. v. Sullivan (1964) and New York Times Co. v. United States (1971), which removed the threat of government censorship from American media. Nor is the problem the idea that “money is speech”; the First Amendment would be toothless if government could prohibit anyone from paying to publish thoughts or being paid to publish them.

The profound problem with our current law is the idea that free speech has neither nuanced variations nor underlying values. The Court in Citizens United claimed that corporations either must have no free-speech rights or must have precisely the same free-speech rights as natural persons do. There is a middle position. Retired Justice John Paul Stevens explained it to TV host Stephen Colbert in January. “For some purposes, corporations are persons,” he said. “As with natural persons as well as corporate persons, some have different rights than others do. The same rights don’t apply to everyone in every possible situation.”

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Stevens is correct—as every member of this Supreme Court recognizes. In a 2011 case, the AT&T Corporation tried to bar release of some corporate documents under the Freedom of Information Act (FOIA). The documents had been turned over to the Federal Communications Commission as part of an investigation; once that was concluded, the statute required disclosure to the public. But the corporations invoked an exception in the statute for materials that would be “an unwarranted invasion of personal privacy.” Chief Justice John Roberts, writing for a unanimous Court, ridiculed the claim: “We reject the argument that because ‘person’ is defined for purposes of FOIA to include a corporation, the phrase ‘personal privacy’ in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.”

As Roberts recognized, our laws treat many kinds of “persons” differently for various purposes—citizens are treated differently from noncitizens, minors differently from adults, members of professions differently from nonmembers. Each group’s rights—even important rights like free speech—are treated differently for some purposes. Union officials, for instance, are closely restricted in how they use union funds for political purposes. Lawyer advertising can be restricted in certain contexts to prevent coercion of potential clients. Tax-exempt organizations must agree not to endorse candidates in exchange for their special status. Even this Supreme Court in January 2012 affirmed a lower-court decision that noncitizens residing lawfully in the U.S.—who do have most other First Amendment rights—cannot engage in “electioneering” in U.S. elections.

There is no reason the First Amendment cannot make a similar distinction in assessing the free-speech rights of corporations. That a corporation is a “person” does not mean that its participation in politics has to be free of regulation. The right to form corporations puts a powerful tool in private hands. A corporation can amass huge sums of cash; its management, in most views of the law, must use that money for one purpose only—to increase profits for shareholders. Fictive person or not, a corporation need never “die.” Corporations are meant to be more resilient and more dynamic than any individual can be. The law of free speech, to be anything other than a mockery of democracy, needs to take that imbalance of power into consideration.

But the imbalance of power doesn’t stem from the idea of corporate personhood. Reversing corporate personhood won’t win the battle against toxic campaign funding. For one thing, corporations aren’t the only “persons” taking advantage of the lifting of restrictions on independent expenditures. Nevada casino magnate Sheldon Adelson stepped in to rescue Newt Gingrich’s campaign with $16.5 million of his personal funds. Any campaign-finance reform worth fighting for will need to restrict billionaires as well as billion-dollar corporations.

For another, the Court in Citizens United expressly said that it was not relying on the idea of personhood as the basis for its decision striking down the McCain--Feingold Act’s limits on money in electioneering. The Court relied on the nature of the speech itself, not the identity of the speaker. Political speech is the most protected kind of speech under the First Amendment. Thus if by a heroic effort we enacted a constitutional amendment stating that corporations are not people, a future conservative Court would have no trouble striking down limits on corporate political expenditures anyway. Current First Amendment doctrine—dating back nearly a half-century before Citizens United—would make the opinion easy to write.

The opinion would be easy to write precisely because current doctrine has broken loose from the underlying values of the First Amendment. Remember Chief Justice Roberts’s improper question: If a state tries to create a “level playing field,” where the voice of the rich doesn’t drown out that of ordinary citizens, this attempt is automatically unconstitutional. Over the past generation, conservative majorities on the Court have systematically undermined the idea that the First Amendment relates to democratic self-government and civic equality.

That problem goes back to the Court’s first major campaign-finance decision, Buckley v. Valeo, in 1976. Buckley considered the campaign-finance reforms that Congress passed after the Watergate scandal. In 1972, the Committee to Re-Elect the President mobilized corporate donations around Richard Nixon’s campaign. As never before, the White House and the government operated to serve powerful corporate interests and extort campaign contributions from them in return. After President Nixon’s resignation, the public demanded major reform to the campaign-finance laws, and Congress complied. The new laws limited the amount of money campaigns could raise and spend, restricted individual contributions to political candidates, set up a public-financing system for presidential elections, cut back on so-called independent political expenditures, and limited the amount of personal funds political candidates could spend for their campaigns.

In Buckley, however, the Court held that the First Amendment did not allow Congress to restrict the total amount raised and spent by privately financed campaigns, to limit the expenditures of the so-called independent committees, or to restrict the amount a wealthy individual could spend on his or her own political campaign. Although the Court did permit Congress to limit the amount any individual could give directly to a candidate, the net effect of Buckley was to halt progress on making American politics fairer, more open, and less dominated by wealthy individuals and corporations.

Like John Roberts in our time, the Buckley majority found the idea of civic equality to be heresy. “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others,” the Court’s per curiam opinion thundered, “is wholly foreign to the First Amendment.”

Really? Wholly foreign?

Wholly … foreign?

Is equality in speech—the right not only to speak but to be heard—really a sinister, un-American notion?

The idea does not stand up to scrutiny.

Imagine a meeting of your county board, with an open comment period for citizens to discuss some pending measure. A local organization—let’s call it “Citizens United”—signs up to speak first. Then, when its allotted time is up, the organization’s representatives refuse to yield the microphone. Citizens United has more to say, they argue; government cannot “silence” them to allow others to talk. Other citizens are still free: They can shout their comments from the back of the chamber or fold notes into paper airplanes and toss them in the direction of the board members.

Would anyone accept this logic?

Or imagine that Citizens United members come to the meeting with privately purchased bullhorns. After their representative has spoken, they use their bullhorns to drown out other speakers. If the chairman told them to stop, would this be “wholly foreign to the First Amendment”? Wouldn’t it be ordinary democratic procedure, designed to make sure that as many points of view as possible are heard?

The private-bullhorn approach is now the dominant view of free speech. The First Amendment exists, in the new logic, to allow those with money to drown out those without. The thrust of much of the Court’s First Amendment jurisprudence in recent years—not just in the campaign-finance area—has been to give increased power to the powerful at the expense of the powerless. A 2007 case, Federal Election Commission v. Wisconsin Right to Life, was an important step on the road to Citizens United. In that opinion, Chief Justice Roberts was self-righteous. “Where the First Amendment is implicated, the tie goes to the speaker, not the censor,” he wrote.

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Sounds good. But it turns out that the tie goes to the speaker when the speaker is a well-funded organization or institution. Individuals don’t fare quite so well. Consider Morse v. Frederick, a case decided the same term, again in an opinion by Roberts. In Morse, an exuberant student stood near his high school as the Olympic Torch went by; when the TV cameras passed over him, he unveiled a banner reading BONG HiTS 4 JESUS. The school principal told him to put the banner away; when he refused, the principal suspended him.

Roberts saw no problem with silencing the witless stoner. He tortured the phrase “BONG HiTS 4 JESUS” to conclude that it could mean “bong hits [are a good thing].” TV viewers could conclude that the school somehow agreed with this “advocacy” of pot usage. Tie paid the house on that one.

Consider the 2006 case of Garcetti v. Ceballos. A deputy Los Angeles County prosecutor found serious defects in a police affidavit that led to a search warrant and a prosecution. When he told his superiors of his view that the warrant was invalid, they ignored him. The defense counsel asked him, under oath, about his view of the warrant. When he answered truthfully, his superiors transferred him and denied him a promotion. He sued, alleging retaliation for exercising his First Amendment rights. The Court rejected his suit. “When public employees make statements pursuant to their official duties,” the majority wrote, “the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

House wins again.

Students can be silenced when they say something that can remotely be interpreted as favoring illegal drugs. Contrast this with the right of tobacco corporations to advertise their addictive drug directly to students. In a case called Lorillard Tobacco Co. v. Reilly, the Court voided a Massachusetts law forbidding tobacco billboards within 1,000 feet of a school. In fact, the Court went further and held that, under the First Amendment, the state could not even require smokeless tobacco and cigar advertisements in stores to be posted a minimum of five feet above the floor, so that toddlers would be protected from colorful cartoons of Joe Camel.

So for all the chest-thumping about free speech, this Court is more and more solicitous of the First Amendment rights of corporations and powerful organizations and contemptuous of the individuals they seek to silence. Citizens United was not a radical departure but another way station in this grim transformation of the First Amendment.

Free speech should be—and in the view of those who wrote the First Amendment, would be—an important means by which Americans govern themselves. Without freedom in what we say and hear, we can’t make informed decisions about politics and society. But the far right has distorted it into the primary means by which private forces govern us. The result is a slow subversion of our form of government, from republic to corporate oligarchy.

Citizens United has stirred outrage across the board. In American Tradition Partnership, Inc. v. Bullock, even judges got into the act. Late last year, the Montana Supreme Court considered a challenge to that state’s corporate expenditure laws from a well-funded pro-business group that advertised to donors that “if you decide to support this program, no politician, no bureaucrat, and no radical environmentalist will ever know you helped make this program possible.”

The Montana court held that the Supreme Court in Citizens United had not considered the unique facts of Montana’s long tradition of corporate abuse—outright buying not just of legislators and elections but of the offices themselves. In effect, the Montana court defied the Supreme Court’s edict that independent election expenditures could not give rise to corruption or the appearance of corruption:

The State of Montana, or more accurately its voters, clearly had a compelling interest to enact the challenged statute in 1912. At that time the State of Montana and its government were operating under a mere shell of legal authority, and the real social and political power was wielded by powerful corporate managers to further their own business interests. The voters had more than enough of the corrupt practices and heavy-handed influence asserted by the special interests controlling Montana’s political institutions. … The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because the shadowy backers of [the plaintiffs] seek to promote their interests?

That interest in self-government was strong enough to overcome any test the high court could require, the state judges said. “The Supreme Court [in Citizens United] held that laws that burden political speech are subject to strict scrutiny, which requires the government to prove that the law furthers a compelling state interest and is narrowly tailored to that interest,” the state court noted. “Here the government met that burden.”

Montana’s rebellion may be crushed—American Tradition Partnership has now hired James Bopp, one of the lawyers who pioneered Citizens United, to seek a reversal at the Supreme Court. But even if the Court overturns American Tradition, the prolonged public and legal outcry may make it hesitate before extending Citizens United to gut disclosure and corporate-contribution laws. The Supreme Court likes to feign indifference to public opinion, but sustained opposition by states, other branches of government, and the people can temper the justices’ certainty.

With luck, we can blunt any move to broaden Citizens United in the near future; with tenacity, we can reverse this entire line of cases.

At least a dozen proposed amendments to the Constitution have been introduced in Congress. Cities and counties around the country have passed resolutions protesting the decision. Unfortunately, too many of the proposed amendments and protest resolutions focus on the red herring of corporate personhood.

What we need is advocacy and discussion aimed at reviving the idea of speech as an essential component of equality and self-government. Most of the amendments proposed so far don’t even mention the idea of “leveling the playing field” or include the most important language—language that would permit the government to institute mandatory public-finance systems with no buyout provision and uniform limitations on independent expenditures by corporations and wealthy individuals.

Amending the Constitution is a difficult and chancy project. We should undertake it—but only around an amendment that addresses civic equality. A drive to amend the Constitution, if fought intelligently, can be an important mobilizing tool. That’s a lesson we learn from the Progressive Era, when communities and citizens organized around the ideas of popular democracy and economic justice.

Whether or not an amendment is successful, however, the fight over the ideas behind Citizens United can bear results. For one thing, in the opinion itself, the Court said that governments can require disclosure of contributors’ names—both for campaign contributions and for corporate and other entities that make independent expenditures. If Congress, and state and local governments, enacts strict disclosure requirements, that sends a counter-message to the Court and to the far right—that the people will not sit by quietly while moneyed interests conduct a covert buyout of our democratic system.

Even if the Court does not overturn Citizens United, American history shows that justices do take into account the popular opposition their decisions stir. A sustained movement can at a minimum make the majority cautious about extending the precedent and set the stage for a future Court to rethink the First Amendment logic that has led our jurisprudence down this blind alley.

The struggle will likely be long and difficult. But it is worth waging, both because we can win concrete gains and because it offers progressives an opportunity to change the national dialogue about the First Amendment. Citizens must unite indeed—around the idea that one-sided, mercenary discourse is wholly foreign to the First Amendment.

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About the Author

Garrett Epps is Professor of Law at the University of Baltimore. He covers the Supreme Court for theatlantic.com. His book, American Epic: Reading the US Constitution was published in August 2013 by Oxford University Press.